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5 August 2021

Independent South Australian Senator Rex Patrick has welcomed the outcome of his legal appeal against Prime Minister Scott Morrison’s attempt to apply Cabinet secrecy to block scrutiny of National Cabinet decision making on Australia’s Covid-19 response.

“Federal Court Justice Richard White’s Administrative Appeals Tribunal decision published today is a decisive repudiation of Prime Minister Morrison’s claims that National Cabinet is part of the Federal Cabinet system and covered by absolute secrecy exemptions under our national Freedom of Information law,” Senator Patrick said.

“This is a decisive win for transparency and accountability.” 

“Justice White has found that in no respect could ‘National Cabinet’ be considered part of the Federal Cabinet or a subcommittee of Federal Cabinet. The National Cabinet was not even established properly, they could not even get that right. National Cabinet’s establishment and early decisions were poorly documented. This is another political, legal and administrative shambles produced by a Prime Minister making things up as he went along,” Senator Patrick said. “Make no mistake, the decision of Justice White is absolutely scathing of the Government.”

“The thing the Prime Minister labelled ‘National Cabinet’ is a faux Cabinet. It’s just another intergovernmental meeting, in effect the former Council of Australian Governments, COAG, by another name.” 

“For almost 40 years Australians have had a legal right under the Freedom of Information Act 1982 to access information relating to intergovernmental meetings, subject only to a test of public harm. Last year Prime Minister Morrison tried to take that right away. He did not ask the Parliament to change the law, he just declared that National Cabinet to be part of the Federal Cabinet and as such exempt under the Cabinet secrecy exemption of the FOI Act.”

“That arrogant declaration has now been overturned.” 

“Justice White’s critically important decision clarified the foundations of Cabinet Government and shows that the Prime Minister must operate within the well-established conventions of responsible government and the law.”

“Mr Morrison cannot just make things up as he goes along to suit his political interests and convenience.” 

“Although the Morrison Government may yet appeal this decision to the Federal Court, and perhaps ultimately the High Court, all at the expense of taxpayers, this is a landmark decision that opens the way for more effective scrutiny of the response of Australian Governments – Federal, State and Territory – to the COVID19 pandemic.” 

Senator Patrick said: “This has been and will continue to be an important fight for me. Freedom of Information is absolutely critical for political transparency, accountability and the preservation of responsible government. This is a continuing battle that must always be fought to protect the integrity of our democracy.”

“I thank Senior Counsel Geoffrey Watson and Counsel Diana Tang for assisting pro bono in this important transparency fight.”

“Their finely honed arguments have been impressively effective in forensically demolishing the claims made by the Prime Minister’s representatives in this matter, including the assertions of the Secretary of the Department of the Prime Minister and Cabinet, Phil Gaetjens.”

“Geoffrey and Diana could have been doing other highly paid work, but they chose to weigh in and help me in this battle to protect our system of responsible, democratic government.” 

Justice White’s decision can be found here.